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form; but from later decisions in the Appellate Division and Miscellaneous Reports, which must have involved a construction of the standard form, it would still seem to be construed substantially the same, the Rosenwald case being recognized as precedent and authority, although the change in the language does not appear to be specially considered in the opinions. The entire language of the standard form is not perfectly clear and distinct, and might be argued to be open to either construction. (See Construction.)

The intent to make the clause applicable to a case where property is wholly destroyed as well as when damaged would seem to be evidenced by the language in a previous part of the standard form which provides that “said ascertainment or estimate (i. e. of the loss or damage) shall be made by the insured and this company, or, if they differ, then by appraisers as hereinafter provided." See lines 2, 3, 109, form, page 475.

Whether this clause supplies sufficient evidence of intent, the absence of which was made the foundation of the reasoning of the opinion in the Rosenwald case (see 50 Hun, 174), or whether the words “as hereinafter providedqualify or limit the meaning and operative force of the language, is the material question. The case in Tennessee, cited under Rule 28, would seem to adopt the former view in construction.

Had the clause (see Rule 1) been made to read “* the appraisers together shall then estimate and appraise the entire loss both as to property wholly destroyed and damaged, stating separately sound value and loss or damage there would have been no room for construction.

The subject would appear to be involved in some confusion and will probably so remain until a clear and decisive rule is made by the Court of Appeals.

In practice the matter is ordinarily disposed of by voluntary acquiescence or construction by the parties themselves, as expressed in a written agreement for appraisal made after the loss, it being usually in the interest of the insured as well as the company to have the entire loss disposed of, if possible and expedient, in the one appraisal.





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RULE 28.

Demand for Exclusive Appraisal of Saved and Damaged Prop

erty not Warranted. A demand for the exclusive appraisal of saved and damaged property is not warranted, when the policy

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is broad enough in its terms to require an ascertainment of the entire loss, or the amount of the loss, in the event of disagreement as to such amount;" the standard forms authorize the appraisal of destroyed property?

1. Palatine Ins. Co. v. Morton-Scott Co., 106 Tenn. 558, 61 S. W. Rep. 787; Williamson v. Liverpool, L. & G. Ins. Co. (C. C. A.), 122 Fed. Rep. 59. And see Rule 27, “Exception.” 2. Stout v. Phenix Assur. Co.,

N. J. Eq.

, 56 Atl. Rep. 691.

RULE 29. If Appraisal Includes Property Wholly Consumed, Award

Conclusive. Where the agreement for appraisal made after the fire as to the amount of loss includes the ascertainment of loss and damage to goods wholly consumed, as well as those which were partially consumed or damaged, and the award affirmatively shows that the appraisers did pass upon and ascertain the loss and damage to the goods consumed as well as to those damaged, such award is conclusive upon the theory of a voluntary arbitration;' and the award is not binding unless they do act on destroyed property as well as damaged.?

1. Georgia Home Ins. Co. v. Kline, 114 Ala. 366, 21 So. Rep. 958.

2. Rutter and Hendrix v. Hanover Ins. Co., Ala. 35 So. Rep. 33.

RULE 30. Duty of Both Parties to Act in Good Faith - Negotiations for

Compromise. Both the insured and the insurance company are under duty to act in good faith to have loss ascertained as provided ;' but if either in bad faith prevent it or unreasonably delay it by refusing to proceed, or by insisting upon selection of improper appraisers, or by undue interference after their selection in the appointment of an umpire or otherwise, the other party is absolved from further obligation to have appraisal; if such fault be attributable to the assured it

is a defense to action on the policy, but if to the company the lack of an award will not defeat a recovery;pendency of negotiations for a compromise does not excuse failure to proceed with an appraisal. The question of fault or good faith is one for the jury. 4

1. Silver v. Western Assur. Co., 164 N. Y. 381, 58 N. E. Rep. 284; American Cent. Ins. Co. v. Landau, 62 N. J. Eq. 73, 49 Atl. Rep. 738; Phænix Ins. Co. v. Carnahan, 63 Ohio St. 258.

2. Western Assur. Co. v. Hall, 120 Ala. 547, 24 So. Rep. 936; Hall v. Western Assur. Co., 133 Ala. 637, 32 So. Rep. 257; Yendel v. Western Assur. Co., 21 Misc. 348, 47 N. Y. Supp. 141; Harrison v. German-American Ins. Co., 67 Fed. Rep. 577; Harrison v. Hartford Ins. Co., 112 Iowa, 77, 80 N. W. Rep. 309; Johnson v. Phønix Ins. Co., 69 Mo. App. 226; Reade v. State Ins. Co., 103 Iowa, 307, 72 N. W. Rep. 665. And see Uhrig v. Williamsburg City Ins. Co., 101 N. Y. 362, 4 N. E. Rep. 745, affg. 31 Hun, 98; Bishop v. Agricultural Ins. Co., 130 N. Y. 488, 29 N. E. Rep. 844, affg. 56 Hun, 642, 9 N. Y. Supp. 350; Niagara Ins. Co. v. Bishop, 49 Ill. App. 388; Caledonian Ins. Co. v. Traub, 83 Md. 524, 35 Atl. Rep. 13; Continental Ins. Co. 1. Wilson, 45 Kans. 250, 25 Pac. Rep. 629; Braddy v. N. Y. Bowery Ins. Co., 115 N. C. 354, 20 S. E. Rep. 477; Chapman v. Rockford Ins. Co., 89 Wis. 572; McCullough v. Phoenix Ins. Co., 113 Mo. 606, 21 S. W. Rep. 207; Powers Dry Goods Co. v. Imperial Ins. Co., 48 Minn. 380, 51 N. W. Rep. 123; Hickerson v. German-American Ins. Co., 96 Tenn. 193, 33 S. W. Rep. 1041; Connecticut Ins. Co. v. Cohen, Мd. Atl. Rep. 675; Continental Ins. Co. v. Vallandigham, Ky.

76 S. W. Rep. 22; British-American Ins. Co. v. Darragh, 128 Fed. Rep. 890, 63 C. C. A. 426; Carp v. Queen Ins. Co., 104 Mo. App. 502, 79 S. W. Rep. 757; Fowble v. Phænix Ins. Co., 106 Mo. App. 527, 81 S. W. Rep. 485. And cases cited under Rule 3.

3. Powers Dry Goods Co. v. Imperial Ins. Co., supra.

4. Fowble v. Phænix Ins. Co., supra; Carp v. Queen Ins. Co., supra.


RULE 31.

Good Faith in Attempted Selection of Umpire Question of Fact.

When appraisers have proceeded with an appraisal but have failed to agree upon an umpire as result of negotiations with that object, court is not bound, as matter of law, to hold that assured has not complied with condition of the policy in reference to an appraisal and to dismiss the complaint upon that ground. Defendant's right, under such circumstances, is to have the insured's good faith in endeavoring to comply with the condition submitted to the jury as a question of fact.

Rademacher v. Greenwich Ins. Co., 75 Hun, 83, 27 N. Y. Supp. 155. And see Harrison v. German-American Ins. Co., 67 Fed. Rep. 577; Davenport v. Long Island Ins. Co., 10 Daly, 535; Connecticut Ins. Co. v. Cohen, Md.

55 Atl. Rep. 675.

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RULE 32.

Umpire Refusing to Act, if Company Delays New Appraisal,

Insured May Make His Assent Conditional.

Where an appraisal fails through refusal of the umpire to act and the insurance company delays in attempting a new appraisal, such new appraisal is so far voluntary on assured's part that he may make it conditional; as, for instance, that the company should pay the award when made, and should waive the sixty days' period prescribed before payment could be demanded; if such a reasonable condition be not accepted by the insurance company the appraisal clause is no bar to the action.

Michel v. American Cent. Ins. Co., 17 App. Div. 87, 44 N. Y. Supp. 832.

RULE 33.

Duty of Parties When one of the Appraisers Refuses to Act.

A refusal to act or proceed by one of the appraisers does not justify the abandonment of the appraisal when other party is proceeding in good faith; it is the duty of the assured to at once name, or offer to name, a new appraiser, or as may be required by the circumstances, to show his readiness to proceed, if he wishes to be represented; otherwise it may be proper for the other appraiser and the umpire to proceed. where there has been disagreement.

American Cent. Ins. Co. v. Landau, 62 N. J. Eq. 73, 49 Atl. Rep. 738. But compare Rules 64 and 71.

RULE 34.

Effect of Failure to Agree upon Umpire When no Question of

Fault or Good Faith. When appraisers acting in good faith have failed to agree upon an umpire through no fault of either of the parties to the appraisal, the assured is not thereby relieved from complying with the condition as to an appraisal; it is his duty to propose the selection of other appraisers, or he must agree to appointment of new appraisers and proceed with the appraisal if demanded by the insurance company; bad faith will not be inferred from mere refusal to agree upon an umpire.?

1. Westenhaver v. German-American Ins. Co., 113 Iowa, 726, 84 N. W. Rep. 717; Vernon Ins. Co. v. Maitlen, 158 Ind. 393, 63 N. E. Rep. 755; Kersey v. Phenix Ins. Co., Mich. 97 N. W. Rep. 57; Carp v. Queen Ins. Co., 104 Mo. App. 502, 79 S. W. Rep. 757. And see Spurrier v. La Cloche (1902), App. Cas. 446 (Eng. P. C.). 2. Kersey v. Phenix Ins. Co., supra.

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RULE 35. When Appraisal Fails without Fault or Misconduct of Insurance

Company. Where an appraisal fails without the fault or misconduct of the insurance company, the condition still remains in force as precedent to right of action, and it is the duty of insured to seek a new determination of the amount of loss in the manner provided for by the

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